The High Court of Uttarakhand has reiterated that every accused person has a constitutional right to be defended in the court and that the Bar Associations cannot indulge in the practice of restraining its members from representing any accused.
The decision in question was taken in the backdrop of an Advocate named Sushil Raghuvanshi, a member of the Kotdwar Bar Association, Uttarakhand getting shot dead by some unknown persons in 2017. In this behalf, a resolution dated 17.05.2019, passed by the Kotdwar Bar Association, Uttarakhand, whereby the Association had resolved that "no member of Kotdwar Bar Association/officer bearer shall represent the accused persons of the murder of late advocate Sushil Raghuvanshi in court…if any advocate despite of this notice and information represents the murder accused in court then Kotdwar Bar association will take action against those members and their membership shall be terminated".
The second paragraph of the above mentioned resolution was however withdrawn vide a notice dated 17.05.2019.
The petitioner, Kuldeep Agarwal, also an Advocate of the Kotdwar Bar Association, who had filed the Vakalatnama on behalf of the accused in the case, had challenged the validity of the said resolution, stating that it violated the vires of the Constitution.
The petitioner, through Advocate Kartikey Hari Gupta, alleged that the above mentioned resolution was passed without having a mandatory quorum and it had the effect of preventing him from representing the accused in a free and fair manner; thus preventing him from discharging his duty of representing his client. He further contended that:
1. Denial of the right to be defended in a case would result in depriving the accused of his right to life and liberty as guaranteed under Article 21 of the Constitution.
2. The Constituent Assembly specifically added "right to defense by the counsel of his choice" as a fundamental right to Article 15-A of the Constitution.
3. The threats of expulsion from the Bar Association were in violation of the Standards of Professional Conduct and Etiquette, particularly Rules 11 and 15 of Chapter II of Part VI of the Bar Council of India Rules.
4. Restraining Advocates from defending a particular accused, was antithetical to the idea of "Justice", "Equality" and "the dignity of the individual" as embedded in the preamble to the Constitution.
5. Barring Advocates from appearing for a particular accused was contrary to the principle of equal justice envisaged in Article 39-A of the Constitution.
Bar Association's Contentions
Alleging that the writ petition titled "Kuldeep Agarwal v. State of Uttarakhand & Ors." was filed with ulterior motives, the Bar Association contended that:
1. The Petitioner could not claim to have been threatened of termination of his membership for appearing on behalf of the accused since paragraph 2 of the notice dated 26.05.2019 had been withdrawn.
2. As per Part VI Chapter II, Section II, Clause 11 of the Bar Council of India Rules, special circumstances may justify refusal by an Advocate to accept a particular brief. Thus, the Advocates also have the right to choose not to appear if they decide so collectively.
The bench of Chief Justice Ramesh Ranganathan and Justice Alok Kumar Verma held that the arguments of the Bar Association held no merit in as much as there was sheer violation of the fundamental rights of accused persons.
1. The impugned resolution affects the fundamental right of the accused to have a free and fair trial, which is the sine qua non of Article 21 of the Constitution, as held by the Supreme Court in Sri Jayendra Saraswathy Swamigal (II) v. State of T.N., (2005) 8 SCC 771.
2. The court stated that it was res integra that every accused has a fundamental right, under Article 22(1) of the Constitution of India, not to be denied the right to consult, and to be defended by, a legal practitioner of his choice.
3. Article 39-A of the Constitution was encapsulated to ensure that opportunities for securing justice were not denied to any citizen by reason of economic or other disabilities.
4. The resolution was in violation of the decision of the Supreme Court had in Hussainara Khatoon & Anr. v. Home Secretary State of Bihar, 1979 SCR (3) 532, whereby it was held that "obstructions caused to the case of the accused result in denial of speedy justice, which is also a threat to public confidence in the administration of justice".
5. In Francis Thomas v. State of Haryana, Crl. Misc. No. M- 34995/ 2017, it was opined that an accused, whatever the offence may be, had the inherent right to be represented by a counsel of his choice.
6. The principle of presumption of innocence is both, a human right as well settled principle of the criminal jurisprudence. Reliance was placed on Narendra Singh v. State of M.P., Crl. Appl. 298 of 1997.
Bar Council of India Rules
1. The "special circumstances" mentioned in Part VI Chapter II, Section II, Clause 11 of the Bar Council of India Rules which justifies refusal of an Advocate to accept a particular brief, refers, by the use of the word "his", to the Advocate in his individual capacity, and not to the Bar Association as a whole.
2. The impugned resolution was contrary to Clause 15 in Section II, of Part VI Chapter II of the Bar Council of India Rules which requires an Advocate to defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence.
Based on the aforesaid, the division bench held that "The aforesaid resolution, passed by the Kotdwar Bar Association, is against all norms of the Constitution, the statute and professional ethics. It is against the great traditions of the Bar which has always stood up for defending persons accused of a crime. Such a resolution of the Bar Association is null and void, and right-minded lawyers should ignore and defy such a resolution if they want democracy and the rule of law to be upheld in this Country. It is the duty of a lawyer to defend, no matter what the consequences".
Declaring the impugned resolution null and void in its entirety, the bench directed the Superintendent of Police to provide adequate police protection to prevent any untoward incident taking place in the Court precincts and the Additional District Judge, Kotdwar to take strict action against anyone acting as an impediment to the Petitioner in the discharge of his obligations as an Advocate. Further, the court imposed costs of Rs. 25,000/- on the Kotdwar Bar Association, payable to the Petitioner.
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